Security at Sea: This is a mixture of my own research into maritime security issues, and includes articles, videos and images of interest from other sources.. Feel free to use these, including my articles and post graduate research (thesis) as long all are correctly attributed to the relevant author.

Monday, April 6, 2015

Chapter 4: Caribbean Cooperation; Is it Bound to United States Interests?

By Timothy A. Martin (copyright 2011)

4.1 Introduction

This chapter discusses the development of non-traditional maritime security cooperation arrangements between Caribbean states in the post-Cold War era. Cooperation to enforce law at sea within the Caribbean commenced prior to the events of 11 September 2001 (9/11), which provides a useful case study from which to make comparisons to events in Southeast Asia in the post-9/11 period. A key difference is that bilateralism was favoured over multilateralism, and the United States was a central security initiator and accepted as the primary partner of non-traditional security at sea in the immediate post-Cold War period prior to the post-9/11 period.
4.2 Security at Sea within the Caribbean
Security and Narcotics

During the 1990s, the United States arrangements with Caribbean states sought to hold back the rising tide of narcotics trafficking. Narcotics smuggling in the Caribbean was not in itself a political crime but it threatened powerful and less powerful states in similar ways. By increasing violence and encouraging corruption, this non-traditional maritime security threat undermined the integrity of political sovereignty. The first decade after the end of the Cold War saw the United States as the sole remaining superpower. The events of 11 September 2001 in the United States had not yet occurred. For the United States, narcotics smuggling from South America was one of the most prominent security issues. Narcotics such as cocaine and marijuana comprised the bulk of illicit drugs being smuggled by air and increasingly by sea from South America. The United States sought to reduce the power of the drug cartels via a land and sea war on drugs to reduce the social and the threat to regional stability and to the political viability of states within the Caribbean Sea. Primarily, the United States sought to limit the influx of narcotics being smuggled by air and sea that wound up supporting domestic organised crime. This essentially criminal activity represented a low security maritime threat but still required an armed response by authorities. While the United States arranged with South American states such as Colombia to try to defeat the drug barons on land through military means, the United States Coast Guard (USCG) had the job of tracking and interdicting vessels and aircraft suspected of smuggling narcotics across the Caribbean Sea towards the United States mainland.

The USCG law enforcement capacity extends beyond United States territorial waters but includes a diplomatic role that represents other interests (strategic and trade) of the United States as well. For the USCG, negotiating rules of engagement with states has required diplomacy in order to avoid misunderstandings regarding the territorial sovereignty of states with which it deals; it is a vehicle of United States diplomacy but is also a military auxiliary service. Since the United States is the only country that extends its jurisdiction, and has the capacity to enforce law at sea in doing so beyond its own borders, the USCG is in a position to assist other states. Even when states reason that underlying United States interests are likely to be driving the arrangements, the capacity and willingness to extend its legal reach is an effective means and quickly improve security at sea for smaller states. According to Interpol Secretary General Robert Noble, law enforcement has been a missing element of cooperation on maritime law enforcement. Noble also argues that naval forces are ill suited to law enforcement roles.[1] Noble reinforces the point that maritime law enforcement becomes problematic when states use naval forces for law enforcement duties. Naval forces convey a different signal to states than coast guard or policing authorities. Nevertheless, even coast guard vessels can present a threat to the authority of a state and make cooperation between states at sea provocative. USCG vessels in particular represent a potential military capability. Therefore, guidelines that indicate the scope of action that each state can take is a significant means of clarifying actors’ intent, scope of action and purpose. It is also a means to convey a message of respect for sovereignty.

The development of law enforcement cooperation with Caribbean states marked a shift of focus for the United States towards regional security, a focus on low-security threats, and the use of international law as a legal means to formalise regional agreements. This represented a shift away from the Cold War norms of regional strategic interests and towards new norms of regional order. Narcotics smuggling was a major factor driving law enforcement at sea in the Caribbean in the post-Cold War era. It represented a significant non-traditional maritime threat in that region. Efforts to increase law enforcement and military operations to target the growth of narcotics trafficking occurred under United States President Richard Nixon. Military and other security forces since 1971 sought to break the cycle of drug production, smuggling and use within the United States and Canada. Only a concerted regional program having the support of all states involved could do this. United States President Richard Nixon sought to address the growing problem of illicit domestic drug abuse in North America and by United States soldiers in Vietnam.[2] This action led to the establishment of the United States Drug Enforcement Agency (DEA) in 1973. However, while use of the Caribbean Sea for narcotics smuggling challenged the national security interests of the United States it also presented challenges to other regional states. Traffickers smuggled narcotics to the United States through intermediary states like Panama and Mexico to the west and the Bahamas to the east. Unlike the low political impact that piracy at sea has had in Southeast Asia, this flow of narcotics smuggling north through the Caribbean threatened the political stability and territorial sovereignty of smaller states in the region.[3]

Enforcing law at sea to stop drug smugglers using the Caribbean Sea as a transport medium, a coordinated regional response was an additional weapon against the cartels but the requirement for armed marine authorities to cross state boundaries occasionally was problematic. Enforcing law at sea was effective when tip-offs, good intelligence and international cooperation allowed operations to succeed but the option of pursuit across state lines would increase the risk to traffickers, and improve the enforcement capacity of authorities.[4] When the 60-foot sloop ‘Dances with Wolves’ left the Caribbean Sea bound for Ireland in 2007 with 1,875 kg of cocaine worth an estimated €675 million, it was tracked continuously by electronic means. It was a coordinated effort by the Portugal-based maritime Analysis and Operations Centre (MAOC), the UK Serious Organised Crime Agency (SOCA), Ireland’s Joint Drugs Taskforce and the US Drug Enforcement Agency. The incident illustrates the effectiveness of cooperation––‘hot pursuit’ offered to increase this effectiveness.

Hot Pursuit and Interdiction
There are significant differences in the management of ‘hot pursuit’ by Caribbean and Southeast Asian states. In the bilateral Caribbean maritime agreements between the United States and regional states, law enforcement authorities coordinate the consent to conduct cross-border operations. In Southeast Asia, on the other hand, coordination between states functions to avoid hot pursuit or cross border incursions altogether and consists of agreements to patrol but regularly, and to share information. Despite Allen’s argument that UNCLOS lacks flexibility, these two examples suggest that hot pursuit has been flexible enough to allow maritime law enforcement agreements to be adapted to different circumstances within the conventions contained within UNCLOS.[5] Within the Caribbean, states respect territorial sovereignty by coordinating cross border pursuits. Maritime law enforcement agreements in Southeast Asia also respect territorial sovereignty of participating states by coordinating patrols but avoid border incursions. This adheres to the Association of Southeast Asian Nations (ASEAN) principle of respect for the ‘sovereignty, equality, territorial integrity’, and significantly, ‘non-interference’ regarding the political affairs or function of neighbouring states.[6]

‘Hot pursuit’ is a significant part of the problem of enforcing law at sea near territorial borders, and was the reason that the United States needed to negotiate agreements with Caribbean states as to how permission could be quickly sought and given. Hot pursuit occurs within the Caribbean when United States or other authorities are pursuing suspect vessels. Hot pursuit has also been a central concern for authorities seeking to interdict suspects within Southeast Asia. For instance, a suspect vessel originating in Indonesia might avoid interdiction by entering the territorial sea of Indonesia –– the suspects would thereby elude pursuing Malaysian or Singaporean authorities. Indonesia may or may not be the suspect vessel’s home state but regardless, the Malaysian authorities cannot continue the chase as it is not Malaysian territory and therefore outside of Malaysian jurisdiction. The Malaysian vessel may be able to enter, under right of transit rules but not in the capacity of a law enforcement authority. Only Indonesian authorities could intervene, to continue the chase or give permission for the pursuit to continue, but it is their call and there is no obligation to do so.

Effectively, the suspect vessel can avoid being stopped, searched or arrested. This problem has occurred where maritime borders are close to, or abut one another, as they do within the Malacca and Singapore Straits. Maritime law enforcement agreements seek to facilitate law enforcement vessels seeking permission to continue the pursuit when the authorities of one state have reason to suspect a vessel has been involved in the violation of the laws and regulations of that state, or of an act of piracy at sea, and wants to pursue that vessel (or aircraft). A pursuit of the suspect vessel occurs when authorities begin their chase in archipelagic waters, a territorial sea, or a contiguous zone or the high sea; the pursuit must be continuous and uninterrupted. The pursuit becomes ‘hot’ if it continues across a state boundary––that is, into the jurisdiction of a state from the high seas, or from the territorial sea of another state. The pursuit must cease if the suspect vessel enters the territorial waters of the suspected vessel’s own state or of a third state, unless the pursuing authority gains permission from the territorial state.[7] In this way, pursuit does not violate the territorial sovereignty of any state.

Issues surrounding hot pursuit have had significant implications for the United States, as any restriction on the USCG to pursue and interdict suspects also restricts a basic ability to enforce law at sea. According to UNCLOS, no vessel can be stopped, without permission being granted, if it is within the territorial waters of the state whose flag it flies; only the authorities of the territorial state are able a stop the vessel. Within the territorial sea, only municipal law, the domestic laws of the state, applies––although the state may be party to international law there is no obligation, as previously noted. To detain suspects within a territorial sea that is not the territorial sea of the pursuing vessel, permission must first be obtained from the state having territorial sovereignty over that sea. If the suspect vessel is inside the territorial waters of another state (not its own state of registry), the suspect vessel must stop when asked to do so by the authorities of that state. If the vessel, failing to stop continues into the contiguous sea of the pursuer’s state, then the pursuing state authorities have the right to continue pursuit. If the vessel is in a contiguous zone then the pursuing authorities of the contiguous zone state can only request the vessel to stop with regard to a breach of laws pertaining to the contiguous zone, and this is the case if a vessel enters an EEZ.

There are exceptions, such as when a vessel is suspected of piracy at sea in international waters, or other crimes committed within the territorial waters of the pursuing authority, or in the case of drug smugglers, against the interests of the United States. Under international law, drug smugglers are not deemed to be threats to humanity as pirates have been, but they do conduct activities declared illegal by states. Illicit drugs are detrimental to the national interest of maintaining law and order, and create black markets, increase violence and undermine the authority of states. However, the right of authorities to intercept suspect vessels is limited in international waters. According to UNCLOS Article 111, a flagged vessel cannot be stopped unless there are unusual circumstances.[8]

Hot pursuit extends the ability of authorities to continue pursuit of suspects by prearrangement with other states with whom they have prior agreements, and who have a similar interest in enforcing law at sea. The right of hot pursuit extends to requesting that the vessel slow and allow a boarding party to embark. If the suspect vessel is intercepted and taken into custody outside the territorial sea then the pursuing authority may prosecute the suspect crew under its own municipal state laws or may decide to hand the suspects on to what the International Maritime Organization (IMO) refers to as a ‘[s]ubstantially interested [s]tate’ for trial and punishment. A ‘[s]ubstantially interested [s]tate’ could be the flag state of the suspect ship, or a state in whose territorial sea an incident occurred, or a state affected by the incident or its consequences, such as loss of life or injuries or that has important relevant information about the incident. It could be a state seeking to repress violence against a crew or passengers or intervening to affect seizure of a pirate or armed robber under UNCLOS Article 105.[9] Drugs smugglers, for instance could be stopped to prevent the known effect of drugs on law and order, such as violence and crime, within destination states.[10] Therefore, conventions facilitate complex issues.

America and Caribbean Security

Although the United States perceptions of proprietorship in the past have hampered Caribbean development and cooperation, according to Watson Denis, many Caribbean states were willing to engage in security arrangements.[11] Building the confidence of Caribbean states that security arrangements would not jeopardise the integrity of their territorial sovereignty has been a basis of their success. Caribbean states have cooperated with the United States in bilateral agreements despite the great differences of power.[12] States had less concerns about cooperation when security issues appeared to benefit national interests, were non-traditional, low security issues that did not appear to threaten the integrity of territorial sovereignty, and they added to the state’s capacities to enforce law within their own or proximate maritime zones. Prior to the end of the Cold War, successive United States governments had sought to deter the expansion of communism into the Caribbean states. Security interests then favoured the political ideologies and strategic posturing of east and west powers. Enforcing law at sea within the Caribbean was an ad hoc, low-priority issue. In the post-Cold War era, this situation changed. Security cooperation during the 1990s was an outcome of a need to meet the regional maritime security requirements of the region at that time.

High rates of crime and violence occurred in both the United States and Caribbean states, linked to a common source, illicit narcotics trafficking. All states could identify with the dangers that smuggling narcotics presented. A 2007 report warned that the ‘levels of crime and associated circumstances’ varied from state to state but ‘the strongest explanation for the relatively high rates of crime and violence in the [Caribbean] region has been narcotics trafficking.[13] Another two 2008 reports echoed that the Caribbean Sea was a significant transhipment region for smuggling narcotics to Europe and North America.[14]

Geographical Challenges Perhaps Peter Benchley’s warning about the raw nature of the Caribbean best illustrates its lawlessness;

[w]e have been dangerous for three hundred and fifty years. We have had rumrunners and gunrunners and pirates and poachers and now the drug people. We have not changed. The yachtsmen, they have changed. They think this is a playground. Well, they are damned fools. The boats are gone and the people are dead.[15]

Not unlike Southeast Asia’s archipelago, the immensity of the Caribbean allows criminal activities at sea to go unnoticed. The scale and international nature of drug smuggling by sea challenges the capacity of Caribbean policing authorities in a region with a history of smuggling crime and violence to which Benchley alludes.

Geographically the Caribbean is an archipelago comparable to Southeast Asia’s sprawling landmasses and islands. Politically, the Caribbean differs to Southeast Asia’s ten regional and four to five principal states. The Caribbean is comprised of many small and medium island states, as well as continental states, with the continent of South America to the south, the long isthmus of Central America to the west and the string of islands making up the West Indies to the east. Adjoining the Greater Antilles to the north are the Caribbean’s largest islands, Cuba and Jamaica and other island states of Greater Antilles, Dominican Republic, Haiti and Puerto Rico. North of these islands lie the Bahamas and Florida; to the northwest are the Gulf of Mexico and southern states of the United States mainland. Although the Caribbean Sea does not share its archipelago directly with the United States, it is within the immediate sphere of its national security interests. Geographically, the Caribbean’s maritime area is 2,640,000 square kilometres (km), stretching 3,000 km in breadth from Central America to the Windward Islands, and a maximum length north to south of 1,450 km from Cuba to Panama.[16]

Therefore, the broad geography and relative isolation of both archipelagos suggest similar characteristics in the Caribbean to those in Southeast Asia; both regions are equally conducive to low-security maritime threats, and law enforcement at sea is difficult.[17] Few of the smaller Caribbean microstates have the capacity to enforce law in their own territorial seas, and even fewer can operate in international waters. With more than 7,000 islands, islets and cays dotting the Caribbean, it is an ideal region for smuggling by sea. In both the Caribbean and Southeast Asian regions, no state has territorial claim over the vast international waters that lie between the regional states, although many states claim extended economic zones (EEZ). The Caribbean Sea connects South American drug-producing countries of Colombia and Venezuela with the primary drug-consumption centres to the north and east, such as the United States, Canada and Europe.[18] Despite different perceptions of threat and security in the region shaped in part by geopolitical characteristics,[19] states could increase naval and maritime law enforcement capabilities through security cooperation with peer states. As the premier actor and driving force behind bilateral security in the region, the United States arguably has had both the most to lose and the most to gain. On the one hand, narcotics destined for the black market support crime on the United States mainland. On the other, microstates in the Caribbean are the collateral victims of narcotics smuggling, as anti-narcotics operations predominantly benefit North American interests.[20]

Therefore, the situation in the Caribbean contrasts with the situation in Southeast Asia, where security cooperation excluded direct participation by the United States. The relationship between the United States and Caribbean states has been increasingly interdependent because of geographic proximity, political necessity and trade interdependence between North and South America, and occurred at a time prior to a declared war on terrorism. Increasing interdependence has also been due to the changing security priorities of the United States that do not differ ideologically from those of Caribbean states, in the way that they would in Southeast Asia after 2001.

4.3 Economics and Security

Regional Economics

International drug control has been important for the region. If economic development was to continue, political stability and territorial sovereignty were necessary for the Caribbean community’s economic success in the second half of the twentieth century. Changing economic support for Caribbean states by the United States since the 1980s has been a factor favouring narcotics smuggling. Reduced aid increased pressure on Caribbean states to improve law enforcement generally. Economic aid from the United States fell by 90 per cent, from US$226 million in the mid-1980s to US$26 million in 1995, affecting incomes and therefore making narcotics smuggling an attractive, if risky option for individuals and officials.[21] During this period, reductions in economic aid from the United States to Caribbean states meant that the region was more likely to turn to illicit incomes generated from drug trafficking. Drug cartels sought to increase their influence in small states within the Caribbean to tranship narcotics and ease the way for further shipments. Consequently, drugs and crime fed one another, assisted by weak regional governance and the prevalence of poverty, famine, corruption and disorder.[22] A 2008 report from the Council of the European Union lists the challenges that its author has believed that Caribbean states faced. These include under-resourced, weak and under-trained judiciaries; poor public confidence in law enforcement and the judiciary systems; spiralling murder rates linked to drugs and organised crime; the proximity to major cocaine production centres in South America; inadequate legislative procedures and anti-narcotics policies; and poor strategic planning or cohesive regional responses taken by governments to tackle any of the above problems.[23] Weak political institutions within the Caribbean region have meant that democratization of smaller coastal states has been fragile. In some ways, this is similar to the situation in Southeast Asia following the 1998 Asian economic crisis that led to states with fragile democracies and weakened economies undermine regional stability, and lead to a weakened capacity of states to enforce law within their own territories. The experience of both regions underlines that regional security and cooperation have been dependant on the economic and political stability of states.

Economic health in the Caribbean region has been linked to the capacity of the region to provide for its own security.[24] In a general sense, Caribbean states are economically weaker than Southeast Asian states, affecting the capacity of some states to provide sufficient maritime law enforcement assets or capabilities for their own needs. Francisco Rojas-Aravena argues that security within the Caribbean includes more than just military objectives.

The threats [to the Caribbean] of the twenty-first century should take into consideration a number of aspects that go beyond strictly military variables … associated with globalization … [and] maintenance of national sovereignty[25]

Rojas-Aravena situates interdependence and realist perspectives as connected, and that to avoid economic instability governments within the Caribbean have needed to adopt a holistic approach to security.[26] Like Southeast Asia’s colonial European past, political influences exerted by states external to the immediate region have helped to shape, and continue to shape the contemporary Caribbean.

Historical Relationships

In a sense, the trade in narcotics is historically indigenous, and a foundation of its regional economic significance. The Caribbean’s economic foundations have long been dependent on production and supply of intoxicating substances, including sugar, tobacco, coffee and rum.[27] Historical dependence links the Caribbean to past colonial masters, in particular through maritime trade with the United States. A geopolitical legacy of European colonization has been that hegemony and ownership of the Caribbean have been goals of powerful states from time to time. The United States has regarded itself a proprietor of the Caribbean and this attitude, according to Watson R. Denis, political advisor at the Secretariat of the OAS, has hampered regional development and cooperation. To overcome this, Caribbean states have needed to embrace their own political sovereignty and make decisions about their own political future.[28] Political stability and territorial integrity have been staples of the Caribbean community’s economic success. In the second half of the twentieth Century, the question of drug control in the 1970s and 1980s became an international but especially a regional concern. As international control sought to counter widespread narcotics trafficking, it also became a polarising and dynamic political issue regionally.[29]

Nevertheless, due to geographic proximity and trade relationships between North and South America, relationships between the United States and Caribbean states in the post-Cold War era have remained largely one of interdependence. Unlike the situation in Southeast Asia, where security is the province of fully independent states, the overall level of security within the Caribbean is regulated by the presence of external actors and events taking place elsewhere, such as 9/11. The fear of violence that 9/11 and the war on terror created could affect regional confidence in the security of the Caribbean, flowing on to have economic consequences, according to Ralph Gonzales, Prime Minister of the coastal microstate of St. Vincent.[30] Although the Caribbean Sea comprises numerous small and ostensibly independent states, some retain ties to Europe and others to the United States[31] so that security within the region is linked to the protection of a wide range of internal and external trade and economic interests and influences.

Many Caribbean states were former territories of colonial European governments, so that a legacy of foreign and regional territorial claims litters the archipelago. British West Indies comprise the English speaking states, such as the British overseas territories of Anguilla, British Virgin Islands, Cayman Islands, Montserrat, and the Turks and Caicos Islands. Territories that form part of the Kingdom of the Netherlands include Aruba and Netherlands Antilles. Territories that form the overseas departments of, or have affiliation with France, include Guadeloupe, Martinique, Saint Barthélemy and Saint Martin. Independent states include the Bahamas, Barbados, Cuba, Dominica, Dominican Republic, Grenada, Haiti, Jamaica, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, and Trinidad and Tobago. Continental states with coastlines adjoining the Caribbean Sea include, Beliz, Colombia, Costa Rica, French Guiana, Guatemala, Guyana, Honduras, Mexico, Nicaragua, Panama, United States, and Venezuela.

Although the region’s legal economic foundations had been partly dependent on production and export of intoxicating substances such as tobacco, coffee and rum, the production of illegal narcotics smuggled through the archipelago from place of production in South America to places of consumption in North America and Europe tainted the image of the Caribbean, painting it as corrupt and crime-ridden.[32] Whereas piracy at sea against ships in Southeast Asia has often been opportunistic, smuggling narcotics by sea within the Caribbean has been associated with organized crime and relatively powerful drug cartels. Smuggling narcotics facilitated a broad increase in violence and crime as well as a general decline in regional security. According to a 1998 strategic assessment, drug smuggling created instability in the Caribbean region and threatened the sovereignty of larger states including Colombia, Mexico, as well as several smaller island states. It also challenged governance or states, including Brazil, Argentina, Chile, and Canada, as well as the United States, Japan, and Europe.[33]

Drugs, Crime and Economics

Smuggling narcotics increased violence and crime in the Caribbean but in different ways to the direct and aggressive behaviour shown towards crews from pirate attacks on ships in Southeast Asia, and therefore affected the way that states in each region have responded. Official corruption, illicit drugs use and small arms trading supported violence and crime ashore. According to Michael Manly, addressing the opening of the 1989 inter-ministerial Conference on Drugs in Kingston Jamaica, in the twenty-first century the Caribbean states could either progress or allow anarchy to reign if drug cartels were allowed to dominate. Manly questioned the political willingness of Caribbean governments to cooperate with international partners and wrestle with the problem of drug smuggling.[34] For Caribbean states this would require money, assets and resources.[35] The Bahamas National Security Minister, Tommy Turnquest, stated that smuggling narcotics and trafficking contributed to crime more than any other activity. Firearms increased violence, adversely affecting the Caribbean value system, and corrupting societal institutions.[36] Assistant Secretary of the OAS, Albert Ramdin, linked organised crime to narcotics smuggling and the growth of terrorist networks within the region.[37]·

As the majority of the physical products of trade move via sea, the security of the maritime environment in the Caribbean, as in Southeast Asia, has been crucial for regional economic development. This in turn supports regional security capacity.[38] Major shipping routes connect Jamaica and mainland states such as Colombia, Venezuela, Panama, Nicaragua, Honduras, Guatemala and Mexico. Trade imports and exports through the Caribbean are far below the levels seen in Southeast Asia and therefore reflect a comparatively weaker economic base from which to build the capacity to enforce law at sea. Merchandise exports of Southeast Asia’s ten ASEAN states[39] were approximately US$863 billion in 2007-08 that far exceeded the total merchandise exports from the Caribbean.[40] In the Caribbean, total imports from all sources were US$18.1 billion in 2006, and total exports were US$17.9 billion in the same year. Although tourism within the Caribbean earns approximately US$21 billion per year, intra-regional imports were US$2.3 billion in 2006, with an annual growth rate of 13.2 percent. Major legal commodities produced within the Caribbean include beverages, tobacco (the largest economic contributor) followed by mineral fuels, lubricants, and food.[41] Industrial economies include Jamaica, Puerto Rico, Dominican Republic. Oil producing states include Trinidad and Tobago, and Venezuela, whereas states whose economies focus on tourism and offshore banking include the Bahamas and Cayman Islands.[42] The gross domestic product (GDP) of Caribbean states varies considerably. At the lower end, the smaller Caribbean island states such as Montserrat and Dominica have GDPs of approximately US$300 –– $600 million (2007), whereas the most affluent state, the Dominican Republic has a GDP of approximately US$35.5 billion (2007). Leading Caribbean oil and gas producer, Trinidad and Tobago has a GDP of approximately US$20.9 billion (2007) whereas Haiti, with a GDP of approximately US$6.1 billion (2007) is considered the poorest Caribbean state on a per capita basis.[43]·

The reaction of Caribbean states to crime at sea has reflected a desire of states to protect economic and political stability. Security fears have helped to shape the way that states cooperate but in different ways to the situation in Southeast Asia. Within the Caribbean, narcotics smuggling has supported crime, violence and corruption, challenging the political stability of states. This was significantly different low-security maritime threat to Southeast Asia’s experience, where piracy at sea did not undermine the political function of states and arguably had little impact on economic stability. In the Caribbean, narcotics smuggling prompted governments to act and cooperate but mainly because of the interest and support of the United States.

4.4 Seeds of Security Cooperation

Diplomacy and Law Enforcement at Sea
Security cooperation between Caribbean states and with the United States required building confidence by establishing the integrity of the more powerful actor. It was important for Caribbean states to trust other actors. The United States has not always been willing to commit to cooperation with other states and has a documented history of prioritising self-interest. Therefore, as a diplomatic agency of the United States, the United States Coast Guard (USCG) in a sense bridged a political divide between military-naval service and law enforcement authority at sea. Thomas Jefferson stated in 1801 that the United States was interested in ‘[p]eace, commerce, and honest friendship with all nations - with entangling alliances with none’.[44] Through enforcing its laws at sea, the USCG’s role since its inception has been to protect the national security interests of the United States. In 1787 Alexander Hamilton, the first Secretary of the United States Treasury, argued that with minimal effort a significant capacity to enforce the laws of his then young country could be achieved; ‘A few armed vessels, judiciously stationed at the entrances of our ports, might at small expense be made useful sentinels of the laws’ . Within the Caribbean Sea during the 20th and 21st centuries, the USCG has sought to enforce United States laws at sea. This includes enforcing United States laws under the Maritime Drug Law Enforcement Act 1986.[45]

The Caribbean Combined Operations Program (C-COP) legislation was designed to facilitate other regional armed forces (at sea but also in the air and on land) engaged in the war on drugs, and to assist states with the operation of existing patrol craft, the standing up of bilateral maritime law enforcement, and cooperation agreements, beginning with the English-speaking Caribbean states of Jamaica and Barbados.[46] Outside of war, a key USCG mission has included enforcing maritime law, providing port security, and border control. The wide scope of these constabulary functions have allowed the USCG to enforce the domestic laws of the United States beyond its own territorial seas while adhering to international law to which it is party. Besides cooperating with naval forces, the USCG has also worked closely with United States Southern Command in the Caribbean, and with other Homeland Security departments, and liaised with governments on information sharing and arrest in the Caribbean Sea region.[47] Southern Command’s Joint Interagency Task Force South (JIATF-S) has combined the capacity of a number of law enforcement, military and other intelligence agencies, encompassing 32 Caribbean states. JIAT-F has responsibility for maritime security in 12 of Caribbean island states and European territories, the Gulf of Mexico, and a portion of the Atlantic Ocean.[48]

This wide support departmental support base gave the USCG a capacity to negotiate and assist other states within the Caribbean Sea and elsewhere, including Southeast Asia. Whereas the USCG claimed a broad-deployment constabulary role, it also had an extended expeditionary legal reach not matched by other coast guard or water police authorities inside the Caribbean Sea, and certainly not in Southeast Asia. Consequently, and for better or worse, the extension of legal reach and national interests of the United States affected development of regional maritime law enforcement. As the primary United States maritime law enforcement service, the USCG enforced domestic and federal laws, treaties, and other international agreements in international waters. USCG officers are authorised under United States law to board any vessel subject to United States jurisdiction, or suspected of posing a threat to the national interests of the United States. This means that even if a vessel was in international waters, the USCG has a mandate to inspect, search, make enquiries and if necessary, arrest suspects well beyond the territorial waters and jurisdiction of the United States.[49] As many USCG vessels (cutters) are equipped for open ocean deployments, supported by various USCG aircraft and naval forces, this authority has been able to extend substantial law enforcement capacity into the Caribbean Sea, with the potential to do so in Southeast Asia.

Although the USCG is a United States armed service, it has credibility as a law enforcement authority rather than a military competitor. Caribbean states have been more willing to make the United States a security collaborator on non-traditional security issues because law enforcement has been regarded as less threatening to the territorial sovereignty of states than strategic and defence matters. During times of war, the USCG has acted as a naval auxiliary force but during peacetime, it has civilian duties that include maritime law enforcement. Established as a legitimate law enforcement authority, the USCG has been less likely to undermine the confidence of actors. Conversely, legal statute excludes the United States Navy from undertaking a law enforcement role though tasked with strategic power projection and defence. Nevertheless, it plays an auxiliary law enforcement role. The Posse Comitatus Act specifically prohibits members of the United States armed services from undertaking law enforcement, but a 1981 addition to the Posse Comitatus Act allows the United States Navy to assist civilian law enforcement agencies, including the USCG. One method to get around this legal limitation has been to use embarked USCG officers, called Law Enforcement Detachments (LEDETS). Created in 1982, LEDETS officers have operated since 1986 and deployed aboard United States Navy vessels operating in areas of known narcotics smuggling activity. There one role is to exercise United States law at sea. Due to the limitations imposed on United States military forces other that the USCG by the Posse Comitatus Act, LEDETS officers have conducted all boardings, searches and arrests of suspects, and naval vessel simply provide an armed means of transport.[50] Using this method of interdiction accounted for approximately 50 percent of all drug seizures on the high seas, suggesting that USCG coordination with naval forces has enhanced maritime law enforcement capacity.[51]

Consequently, United States military facilities, technical assistance and operational support supplements the USCG capacity while laws continue to prohibit direct law enforcement by United States military personnel.[52] This wide scope and occasional use of naval vessels and aircraft reinforced the credibility of the USCG as a partner able to offer capacity-building benefits to other states. For instance, the use of the USS Annapolis (SSN760) nuclear submarine operating out of Sao Vicente in Cape Verde in late 2007, provided intelligence on drug smuggling and illegal immigration. The USCG could justify use of an expensive major weapons platform as a tool because it efficiently assisted efforts to control maritime criminal activities.[53] This type of additional naval capacity, when supporting USCG law enforcement operations, far exceeds the capacity of many Caribbean states to provide law enforcement at sea and is therefore a strong motivator for smaller states to engage in bilateral agreements with the United States.

The USCG operations within the Caribbean sought to provide non-traditional maritime security at sea. Because of the sheer geographical of scale of the Caribbean, it has had a mixed rate of success.[54] Described as the ‘transit zone’, the USCG area of operations is vast, covering an approximate area of 9,656,064 square km (six million square miles) that includes the Caribbean Sea, Gulf of Mexico and the Eastern Pacific. According to a United Nations 2007 World Drug Report, 58 percent of global cocaine seizures occurred within the immediate USCG area of interest; that includes the Gulf of Mexico, the Caribbean Sea, Pacific coastline and the Bahamas.[55] Statistics from the USCG however, suggest that success rates of interdictions of vessels and seizures of narcotics have varied, with steadily increasing rates of arrests and seizures in the late 1990s leading to a high point of success by 2005 for maritime interdiction generally.[56] Since the number of successful interdictions of illegal immigrants approaching the United States by sea through the Caribbean also hit a high point of success in 2004/2005, it suggests a period of success in detecting vessels involved in maritime criminal activities.[57]

A Need for Security Partnerships

Limited resources limit United States foreign engagement programs. This translates into a prioritisation of maritime security where it benefits the interests of the United States. Consequently, the USCG has taken a pragmatic approach by seeking the inclusion of security partners.[58] Coordinating with United States Customs and other states within the region, as well as liaising with external states with interests within the region, such as France, Netherlands and the United Kingdom, the USCG has been able to increase its credibility as a security partner. As a legitimate law enforcement authority, the USCG was able to negotiate international security agreements with Caribbean states. The success of bilateral agreements relied on Caribbean states feeling confident of no compromise to territorial sovereignty if they cooperate with the more powerful actor. Successful cooperation between the USCG, other federal agencies and with the governments of other states attests to the effectiveness of the resulting security arrangements, because according to the USCG, they accounted for 52 percent of all United States government cocaine seizures annually.[59]

Most important is the need for good governance, upholding the rule of law and crime prevention.[60] Confirmation of links between increased drug trafficking and rising rates of violence and crime within Caribbean states supports arguments for stopping the narcotics before they reach transhipment ports. Several sources, including reports by UNODC in 2007, the International Crisis Group (ICG) in 2008, as well as comments from the chief of the United States Southern Command (SouthCom), Admiral James Stavridis, all identified strong links between smuggling narcotics and high rates of
crime and violence.[61] Moreover, criminal behaviour had been normalised by this activity. All three sources indicated the benefit of reducing narcotics smuggling through increased law enforcement cooperation with states within the region. General Barry McCaffrey, former director of the United States Office of National Drug Control Policy, stated that in this war on drugs there would not be a definite victory.[62]

4.5 Regional Capacity and American Interests

External Sources of Capacity

Trade agreements promoted by regional institutions normalised patterns of relationships and confidence building behaviour between Caribbean states, and facilitated security discussions. Subject to the existing terms of understanding between states, cooperation included; initiatives between the states themselves or facilitated by the United States, via the USCG, joint naval exercises, exchanges of personnel, bilateral agreements on intelligence gathering and dissemination, and holding multi-state meetings and forums, facilitating dialogue and networking and improving levels of trust between states. Despite economic successes, some Caribbean states have not had the capacity to provide adequate law enforcement at sea on their own; sometimes this was because external assistance was available. For example, Haiti continued its narcotics transhipment role, despite United States-provided assistance since 1997, through air and sea patrols. The island of Hispaniola has a 1,500 km long coastline, is largely unprotected and split between the Dominican Republic and Haiti. Haiti has been one of the poorest states in the Caribbean Sea and its legal system has been weak, and its law enforcement dysfunctional. Colombian cocaine bound for Europe and the United States led to a growth in drug trafficking and corruption of Haiti’s police force. Consequently, the anti-drugs and corruption challenges tested Haiti’s capacity to remedy its own domestic security problems, let alone its ability to face the security challenges of the wider Caribbean.

Caribbean states with close links to Europe have approached the issue of law enforcement at sea cooperation in different ways to the English-speaking states. This illustrates that the cultural divides within the Caribbean have not prevented regional security cooperation. During the late 1990’s the United States Government sought discussions with the Government of France regarding the problem of drug smuggling, as French Guiana, Martinique, Guadeloupe, the French side of St. Martin, and St. Barthelemy were all overseas departments of France and subject to French Law and the International Conventions it has signed. These discussions had resulted in the both countries co-drafting the Caribbean Regional Maritime Agreement (CRMA) in November 2001.[63] Additionally, France and the United States entered into a Dutch-sponsored agreement later co-signed and ratified by Jamaica and Belize in 2007. This agreement had also still not come into force by January 2008 as it lacked the requisite number of ratifications.

Located in the south of the Caribbean Sea, the Netherlands Antilles cooperated with the United States on law enforcement at sea through the Dutch Government. The Dutch Navy deployed under the support of the Component Task Group 4.4 that in international waters, was supervised by the United States Joint Inter-Agency Task Force South (JIATF-S). On the other hand, seven east-Caribbean states, Antigua and Barbuda, Dominica Grenada, St. Kitts and Nevis, St. Lucia and St. Vincent and the Grenadines, were simply party to broader counter-narcotics regimes, including the 1971 United Nations Convention on Psychotropic Substances and the 1988 UN Drug Convention. A major victory was the change in attitude between regional actors, from national to collective victories, in the fight against narcotics smuggling.[64] Other international coordinated security efforts include those of the Maritime Analysis and Operation Centre-Narcotics (MAOC-N) based in Lisbon, Portugal. The MAOC-N focuses on interdictions of vessels suspected of smuggling narcotics across the Atlantic to Europe. Its member states include Great Britain, France, Portugal, Ireland, Italy France and the Netherlands. Although it has primarily sought to improve information sharing, the MAOC-N has faced similar challenges to other multilateral maritime law enforcement arrangements, including differences of languages, national priorities, and competition between members, cultural differences and other limitations.

United States Partnerships and Capacity Shortfalls
Law enforcement at sea security relationships that Caribbean states have had with the United States have been quite different to those within Southeast Asia. This is because similarities in the experiences of Caribbean states and the United States in trying to reduce narcotics smuggling, has drawn these actors closer than those actors in Southeast Asia while attempting to reduce piracy at sea. Under President Nixon in 1971, new impetus was given to counter-drugs efforts that had begun during the 1960s. By 1973, the Drug Enforcement Agency created, its operations initially meeting with mixed success.[65] Although the United States could act unilaterally to try to stem the flow of illicit drugs through the Caribbean, arrangements sought with Caribbean states facilitated the interdiction of suspects at sea. Ad hoc counter-narcotics smuggling agreements between the United States and states within the Caribbean sought to better facilitate these operations by coordinating with policing authorities. Former United States Deputy Assistant Secretary of State, International Law Enforcement (1994-1999), Jonathan Winer , commented that the growing range of cooperative maritime law enforcement initiatives developed over many years were designed to counter specific problems. Providing a legal framework for law enforcement, customs, and judicial cooperation, these could be adapted to counter any maritime criminal activity. While individual initiatives sought to address specific crimes, such as international narcotics trafficking, they could equally be applied to maritime crime or counter-terrorism.[66]

While the presence of the USCG has been able to increase the credibility of the United States as a security partner, it has had to adopt a pragmatic approach to security engagement generally. Resource scarcity in foreign engagement programs has meant that the maritime security interests of the United States have had to be a priority.[67] During the Reagan and Bush administrations in the 1980 and 1990s, the United States began bilateral dealings with what Klein describes as ‘frequently reluctant partners’ to try to stem the trade in cocaine and heroin.[68] A part of the problem was that the United States had a different perception of what ‘partnership’ meant. Elliot Abrams, United States Assistant Secretary of State for Inter-American Affairs during the Reagan Administration, saw benefits in states voluntarily accepting small erosions to their sovereignty short of allowing the United States to gain the status of a colonial power. Consequently, small state-owned companies were put under pressure to move out of drugs production of that weakened small state economies.[69] Smaller states within the Caribbean were encouraged in engagement measures such as extradition treaties with the United States and access to territorial waters when pursuing suspected drugs smugglers. A trade-off for the coastal microstates that cooperated with the United States was the projection of maritime law enforcement operations to seaward of their territorial waters, enlarged capacity of regular wide-ranging maritime patrols of partner states, and improved intelligence from security partners with money and assets such as the USCG.

By 1996, the United States State Department noted improved cooperation between some states within the Caribbean Sea, and strong support from others, such as Barbados, although the capacity of the smaller state’s marine authorities remained limited. Barbados had been noteworthy as willing to cooperate with United States maritime law enforcers, as it provided a strong enforcement capacity and judicial system, which had increased drug-related arrests and lowered crime generally. Other states had been unable to finance law enforcement that could effectively address the rate of drug trafficking.[70] Although most Caribbean states had cooperated to fight narcotics smuggling, official corruption and insufficient marine patrol vessels hampered the effectiveness of law enforcement capacity at sea for some microstates.[71] To an extent, some Caribbean states retained the financial, trade and/or security support of more powerful European states, including United Kingdom, Netherlands and France. Mexico, on the other hand, has had sufficient military capacity to mount counter-narcotics operations but have had to stretch them along a 10,000 km coastline, extending from the Pacific Ocean, Gulf of Mexico and into the Caribbean Sea. Unlike the legal restraints imposed upon the United States Navy by the Posse Comitatus Act, which legally prohibits all United States military, with the exception of the USCG, from carrying out law enforcement operations, the Mexican Navy (SEMAR) is tasked with providing maritime law enforcement as part of Mexico’s Civil Protection Action Plan that specifically targets narcotics traffickers.[72] According to Vice Admiral Sergio Enrique Henaro Galan, Chief of Staff of the Mexican Navy, one of the Mexican Navy’s primary tasks has been to deny the use of the sea to organised crime.[73]

Nevertheless, a 1996 United States Joint Interagency Task Force-East tally of assets available for interdiction by Caribbean Sea states revealed a general scarcity of resources. In that year, the British Virgin Islands had six patrol boats and one aircraft. Anguila had two patrol boats and St. Martin, Guadeloupe and Martinique had three patrol boats, six fixed-wing aircraft and four helicopters. Antigua and Barbuda had three patrol boats, while St. Kitts and Nevis had four patrol boats. Montserrat had one patrol craft with one crewmember and limited fuel, whereas Dominica had four patrol boats. St. Lucia had four patrol boats but two remained damaged. St. Vincent had four patrol boats, while Barbados had five patrol boats, one damaged. Grenada had four patrol boats and finally, Trinidad and Tobago had some large, medium, and small patrol vessels.[74]

Although ad hoc bilateral agreements targeted specific, known delivery waypoints such as weaker coastal microstates, there were limitations to what they could achieve. Anti-drug trafficking operations in the Caribbean region targeted manufacture, transport and sale of illicit narcotic drugs, estimated to generate US$322 billion per year globally for the black market and organised crime. However, referring to efforts by UK-Jamaican anti-drug smuggling cooperation, Peter Clegg argues that one drawback of bilateral cooperation, as opposed to multilateral cooperation, was that transhipments of cocaine simply moved away from states where law enforcement capacity had increased the risk to traffickers, to less risky areas of the Caribbean.[75] A benefit of making a number of law enforcement at sea agreements was that it expanded the range of sources that collect and collate information. Inter-related information gathered by all agencies and shared across borders between state policing organisations, allowed connections to be made between apparently unrelated incidents that led to the crime gangs themselves.[76]

In March 1999, a report jointly produced by the United States Office of Naval Intelligence (ONI) and the USCG Intelligence Coordination Centre sought to give a broad picture of the ‘forces, events and activities shaping the maritime security environment of the following two decades’ up until the year 2020. The report found that illegal maritime trade and activities due to increasing globalization of trade was facilitating an increase of transnational crime.[77] A 2004 United States Congressional Report did not refer to a paucity of regional assets but does name what the United States saw as the primary challenges. The report emphasised the importance of good regional governance and improved intelligence sharing that would be required to respond to narcotics trafficking, terrorism and corruption. It noted that weak political institutions in the Caribbean Sea left many countries unable to police their own sovereign territories, and porous borders had allowed violent crime to increase, due to drug trafficking and other criminal activities. Although the report argued for increased cooperation between states, it noted that existing initiatives had focused on combating transnational threats and counter-drugs operations. These included intelligence sharing through the Regional Security System (RSS),[78] the Caribbean Information Sharing Network (CISN), the USCG’s Caribbean Support Tender (CST), and Southern Command’s annual Trade Winds exercise.[79] Like early counter-piracy at sea arrangements in Southeast Asia, patchwork bilateral agreements to facilitate a response to narcotics smuggling had been in force between the United States and regional states since the 1980s, but had been ad hoc and lacked a unified approach. During the 1990s, bilateral security agreements with more uniformity were negotiated with 28 Caribbean states; many of these were six-part agreements, had a maritime focus and included shiprider arrangements. These allowed the United States full or partial permission for ship boarding, ship riding, hot pursuit, entry to investigate, and over-flight rights.[80] A weakness of enforcing law at sea within the Caribbean but also Southeast Asia and elsewhere, is that suspects have been able to evade interdiction through well-defined rules of engagement but ill-defined post-interdiction strategies, and/or problematic pursuit restrictions.

Basic Agreements

For international law to function as a mechanism of cooperative behaviour between states, understandings need to be in place as to the principles, rules, codes and conventions that participants agree to adopt and abide by.[81] Even with general agreement, there is likely to be political or capacity limitations. For example, a suspected vessel registered (flagged) to a different state than the home state of the authorities making the arrest, and perhaps the suspect vessel’s crew are citizens of a third state or of multiple states.[82] In that case, the owners of the vessel, as well as the flag state will need contacting to obtain permission to board. An exception to this rule applies if the seized vessel is suspected of engaging in piracy at sea and is stopped on the high sea. Aberrations to international law may depend on the way that states prioritising particular events. Since 2008 within the Gulf of Aden, many states committed warships to prevent pirates hijacking commercial ships for ransom but most states would not prosecute the pirates because of the difficulty of obtaining legal prosecution. Consequently, after seizing weapons and destroying pirate vessels, suspect release has been common. This highlights the problematic nature of law enforcement in international waters. Cooperation between states depends on context, capabilities and law; it may be that what works in one region against a particular security threat, may not work in the same way elsewhere for these reasons.[83]

Nevertheless, by 1997, the United States had six-part agreements with five states, including Antigua and Barbuda, Grenada, St. Kitts and Nevis, St. Lucia, as well as Trinidad and Tobago. At this time, the United States also had partial agreements with eleven other Caribbean states.[84] By mid-2009, there were 27 shiprider agreements in place and operating in the Caribbean. Depending on the details of individual agreements, United States law enforcement officials could ride in local coast guard vessels or vice-versa.[85]

In order to respond to narcotics smuggling, 1996 the United States adopted a strategy to encourage those regional states, where production and/or transhipment of narcotics was known to occur, to assist in interdiction operations. At that time, sources in Colombia and Venezuela transported approximately 30 percent of cocaine through the Eastern Caribbean Sea, bound for United States and European drug-markets. In April 1996, the United States General Accounting Office acknowledged that cocaine trafficking (and use) was a major threat to the social integrity of the United States. A report noted a trend of drug smugglers away from air-related operations toward maritime smuggling activities.[86]

To garner support from states within the Caribbean Sea, the US State Department sought to implement new agreements with governments that might improve cooperation. New maritime security agreements built upon a 1997 general agreement between Caribbean states, ‘Partnership for Prosperity and Security in the Caribbean’. This agreement sought to improve security and uphold norms of international law, and ‘principles enshrined in the Charter of the United Nations … respect the sovereignty of states, good governance … and the rule of law’ and combat organised crime in the region.[87] Some smaller Caribbean states did not have the capacity to conduct effective law enforcement at sea. Exacerbated by widespread corruption amongst Caribbean states, Caribbean states were limited by having small populations, small economies and therefore limited funds available for maritime law enforcement operations. ·

United States officials sought to improve the maritime law enforcement, interdiction capacities of these states by ratifying agreements that allowed United States personnel to commence anti-drug smuggling sea and air operations inside their territorial waters and airspace.[88] Before 1996, no agency of the United States had been able to develop a plan to implement the existing strategy to respond to narcotics smuggling, or provide any fully staffed inter-agency organisations with key roles in the interdiction programs, nor fully resolve intelligence sharing issues. United States officials noted that neither the Director of the Office of National Drug Control Policy, nor the United States Interdiction Coordinator had the authority to command the use of any agency’s operational assets.[89] Caribbean organisations, such as the OAS considered mechanisms and agreements established to achieve these goals as critical to economic and societal security.[90] In February 1997, Richard Bernal, Jamaica’s Ambassador to the United States, stated that despite differences between states over the way that maritime security agreements would operate, there was consensus that there was a need for agreements between states.[91]

Mutual Legal Assistance Treaties, known afterwards as ‘shiprider agreements’, built upon this regional partnership, allowing USCG law enforcement officers to be placed aboard vessels and aircraft to avoid the time-consuming process of obtaining official approval to enter the sovereign territory of states.[92] Shipriders were officials of one state that deployed aboard an official vessel of another state. The agreements facilitated extradition as well as ‘investigation, prosecution, and prevention of crime’. They also provided for ship boarding in international waters and, in at least one case, the turning over of high speed, ‘go-fast’ vessels, previously confiscated by the United States Customs Service, for use in pursuing narcotics smugglers.[93] When suspects tried to avoid arrest when pursued by entering the territorial sea of a second state, the pursuing foreign vessel would be able to continue pursuit as the embarked official of the second state could facilitate a legal interdiction and arrest. This arrangement of hot pursuit allowed a prompt means to gain permission to continue a pursuit across state territorial boundaries but required the pursuing authority to have a suitably fast patrol vessel. The treaties permitted sea and territorial patrols by both the USCG and United States Navy, and search and seizure operations by United States law enforcement authorities, to operate within the territory of Caribbean Sea states, including over flight and landing privileges within these countries. By November 1996, at least ten Caribbean countries had signed on to an individual version of this agreement, yet there was some discontent. Therefore, the leaders of fourteen independent states, one dependency and associate members that form the Caribbean Community and Common Market (CARICOM), met in Barbados on 16 December 1996 to consider alternative arrangements that would provide similar security outcomes, albeit with some assistance because of the limited capacity of some regional states.[94] These member governments called for closer consultation between CARICOM countries and the United States, despite the reservations of some states who felt that the American Government was coercing them.[95]

There were concerns that maritime law enforcement cooperation within the Caribbean would infringe upon sovereign territorial rights. ‘Trust’ would also be a significant hurdle to states cooperating in Southeast Asia in the following decade, where it delayed partnerships between regional states leading to the exclusion of the United States as a participant in the Malacca Straits Security Patrols (MSSPs).[96] Additionally, within the Caribbean, corruption and a lack of trust during the early 1990s led to poor information sharing. A paucity of legislation was in place to smooth cooperation between different states. Legal mechanisms that did exist were weak, open to exploitation by narcotics traffickers. At the time, the absence of a legal framework to facilitate operational cohesion was restricting formation of effective maritime (and air) law enforcement within the Caribbean that could counter-narcotics smuggling activities.[97]

Only interoperability and strong alliances with regional and international partners would allow states to continue to reduce the maritime criminal activities within the Caribbean Sea but smaller states faced considerable challenges. The government of the Caribbean coastal microstate, St. Kitts and Nevis, compared the limitations faced by smaller Caribbean Sea states to a state of war: porous borders and deficient maritime capabilities and resources made the region vulnerable. According to the Prime Minister of St. Kitts and Nevis, Denzil Douglas, it was important that the states engage with international partners, particularly the United States. Such law enforcement engagement had implications for regional counter-narcotics trafficking, supplementing St. Kitts and Nevis’ involvement in other initiatives such as the Regional Intelligence Fusion Centre (RIFC), the Joint Regional Communications Centre (JRCC) and CARICOM watch list.[98]

However, there was an imbalance between what Caribbean states desired to retain in the way of territorial sovereignty and economic underpinnings, and their capacity to provide maritime law enforcement to protect these. If drug cartels could access more money and assets than some states could, it would require the community of states, perhaps through initiatives developed through CARICOM and the Association of Caribbean States (ACS) or external assistance to develop security solutions. CARICOM members include 15 Caribbean states and dependencies, representing mainly the English speaking Caribbean.[99] ACS represents the French and Spanish speaking Caribbean (except Haiti), and has 25 members including the Central American states of Guatemala, Honduras, El Salvador and Mexico, and associate members, Aruba, French Guiana, Guadeloupe, Martinique, the Netherlands Antilles and Turks and Caicos.[100] Both CARICOM and ACS provide regional community institutions primarily for promoting economic trade but the wide memberships allow discussion on other issues, such as security; CARICOM listing maritime counter-narcotics smuggling agreements that are in force between its member states and the United States.[101]

External Support
The period from 1995 to 1998 saw the implementation of bilateral maritime law enforcement agreements between the United States and many states in the Caribbean region, including all RSS member states but also the inclusion of external states. The maritime agreements targeted the primary problem of drugs smugglers using the territorial seas of states as havens, allowing them to evade pursuing maritime law enforcement vessels and aircraft in and over international waters. In November 1995, the then Barbados Prime Minister Arthur called on the United Kingdom for additional counter-drug smuggling assistance within the Caribbean Sea region. France, Netherlands and the United Kingdom at the European Union Heads of Government meeting in Madrid raised the question of cooperation in December 1995. The outcome was the production of several reports on ways of combating drugs in Latin America and the Caribbean Region. The first regional meeting on drug-control cooperation, held in Barbados in May 1996, led to a ‘Barbados Plan of Action’. The CARICOM heads of governments in July 1996 subsequently approved a recommended regional approach. Its framework included maritime aspects of drug interdiction operations in the Caribbean. In May 1997, a maritime counter-drug cooperation, discussion paper titled, ‘Beyond mere ad hoc interdiction’ recommended a comprehensive, cooperative approach to maritime and aeronautical interdiction operations in the Caribbean.[102]

Limited capacity of states improved under the six-part bilateral arrangements but capacity building within the Caribbean also came from external actors. External actors, including the United Kingdom, France and the Netherlands, as well as the United States have also boosted the marginal capacity of Caribbean states through their historical, political and trade linkages. These provide operational platforms to act upon a wide range of surveillance and other information sources. States within the Caribbean have relied on external assistance as the most cost effective and timely way to increase capacity. In the interest of wider practical assistance to Caribbean states and capacity building, decommissioned USCG cutters (ocean-going maritime patrol vessels) were transferred to Panama, Costa Rica and Nicaragua, along with training on the operation and maintenance of the vessels. This contrasts with Southeast Asia, where assets and capacity to enforce law at sea have proven more or less adequate, even if regional states were generally under-resourced. The effectiveness of external forces cooperating with Caribbean security at sea was apparent. In 2005, for instance, following a USCG patrol tip-off, the frigate HMS Cumberland and a Lynx helicopter from the Royal Fleet Auxiliary Wave Knight intercepted a speed boat ‘go-fast’ laden with two tonnes of cocaine, with an estimated street value of UK£200 million. Ostensibly, the British warship was patrolling the Western Caribbean Sea on a humanitarian aid and disaster relief patrol. HMS Cumberland’s commanding officer, Simon Ancona stated that this type of operation sent a strong message to governments, their agencies and the armed services, that cooperation between navy and state could answer the challenges that such criminal activities presented.[103]

Individual states have not been entirely helpless, and could at least assist interdiction efforts, as the surveillance capability available to United States and other external forces had not always been available locally. For example, when 360 kilograms of cocaine dropped from an aircraft into the Caribbean Sea near the Dominican Republic’s south coast in early 2007, the small, local, National Drugs Control Agency (DNCD) needed support to find and apprehend those involved. The DEA arrested two men in a boat near the drop as this occurred in international waters, outside the Dominican Republic’s jurisdiction. DNCD official, Rafael Ramirez saw the usefulness of such support by the DEA and Royal Navy forces as their combined capacities facilitated rapid location, interdiction, and arrest of all involved.[104] The Royal Navy’s ship HMS Iron Duke reported in July 2008, its first month on patrol in the Caribbean Sea, that it was able to carry on multiple roles. These included disrupting the activities of suspected drug-runners by interdicting and sinking go-fast speedboats and apprehending their crews, and other maritime safety activities.[105] Another response involved use of a submarine out of the Netherlands Antilles in the southern Caribbean Sea. Using two of these covert vessels for mapping smuggling practices and reporting 24 hours per day on the behaviour of smugglers in the Caribbean Sea, the submarines deploy for up to five weeks at a time.[106] In a similar operation, between 20 February and 17 April 2009, the American attack submarine USS Hawaii deployed in a counter-narcotics smuggling capacity, providing covert surveillance support for the USCG, the United States Navy Frigate USS Crommelin and other naval vessels and P-C3 maritime surveillance aircraft.[107]

Bilateralism Verses Multilateralism

While Southeast Asian states would later need incentive to act, followed by confidence building through constructing a coordinated but non-interfering approach to law enforcement at sea, the USCG had been able to negotiate directly with Caribbean actors. Therefore, there was a requirement that states within the Caribbean come to an agreement on the terms and conditions by which they would cooperate. Maritime law enforcement, counter-smuggling narcotics investigations and maritime surveillance required a whole of region involvement if the ability to apprehend suspects was not to face restriction by legal technicalities. If permission to pursue a vessel suspected of criminal activities was required then established rules and conventions of procedure needed to be in place. Otherwise, suspect vessels could use administrative delays to evade interdiction, by crossing into the territorial waters of another state that did not have a prior agreement in place. It was clear that clarification of the terms and conditions of hot pursuit needed to be as inclusive as possible, in order to obtain permission quickly from the state in which a vessel is registered.

Acceptable arrangements also meant that it had to be acceptable to the USCG, representing the interests of the United States. With its active international presence, Rear Admiral William Baumgartner stated that the USCG evaluated each situation and the availability of authorities and their capacity and competence and partners when carrying out sensitive missions like boarding ships, inspecting cargoes and countering terrorism.[108] Once reaching agreement, ‘acceptable’ arrangements would allow the USCG the needed permission from states to gather information, conduct hot pursuits in order to carry out interdiction of suspect vessels, and to follow through with arrests where appropriate.

Provisions for hot pursuit are contained within UNCLOS, Article 27; the following explanation and anecdote clarifies how successful hot pursuit by an authority such as the USCG typically would occur. If boarding a suspect vessel, the USCG must first contact the state in which a vessel is registered (the ‘flag state’) and request permission to board and search the vessel. Authorities then enforce either United States law, or the law of the state with whom the vessel is registered; only the flag state can give such authorisation.[109] For this reason, the USCG communicates directly with the government of the suspect vessel’s flag state through diplomatic channels. The same applies if the USCG pursues suspect vessels into a territorial sea. Under the six-part bilateral arrangements, the USCG communicates directly at government level with territorial sea state, to gain permission to continue the pursuit; shortening what was previously could be lengthy process. While smaller (often very fast) vessels may be boarded at sea to prevent them eluding pursuing authorities, larger (often slower), vessels are more likely to be checked when in port, for safety reasons. Whether permission to board comes from the ship’s master or the government of its flag state, when contraband is discovered, the flag state and home state are immediately informed.[110] For instance, on 18 March 2007, the United States Drug Enforcement Administration (DEA) and USCG pursued a Panamanian registered vessel into Panamanian waters, approximately 20 nautical miles off the Panamanian Isla de Coiba. The USCG obtained the consent of Panama, as both the state of registry of the vessel and the state involved, to board and search the vessel. Two shipping containers found after interdiction, had 19,280 kilos (19 metric tonnes) of cocaine stashed inside, worth around $300 million. Secretary of Homeland Security Michael Chertoff referred to this operation as an example of inter-agency teamwork. Admiral Thad Allen, commandant of the USCG referred to this operation as an example of both good intelligence sharing and effective cooperation between law enforcement agencies.[111]

Since standing up the six-part bilateral agreements, there was regional interest in constructing a more comprehensive, regionally focused, law enforcement regime that might be consistent with established international conventions that included maritime crime while having a focus on cooperation between states. A report by the EU Experts Group noted in 1996 that the CARICOM Heads of Governments approved of the concept of a regional agreement in May 1996.[112] However, a 1997 USCG paper suggested that the mixed success of countering the problem of drug addiction within the Caribbean had not led to improved cooperation and coordination between Caribbean states.

Both United States and Caribbean states had sought, often for Cold War purposes, more effective and inclusive security cooperation for some years. The ad hoc multi-national counter-narcotics operations commenced in the Caribbean Sea region involving Caribbean states and Dutch, French, and United States authorities had generated the concept that international security cooperation was possible to counter what were essentially criminal activities within the region. The process of regional multilateral security cooperation had begun with adoption of a Regional Security System (RSS) between 1982 and 1996 –– essentially a program of coordinated aerial security patrols, although they did not necessarily focus on drug smuggling. During this period, RSS member states concluded several regional memorandums of understanding leading to the original RSS Treaty. The RSS Treaty provided a fast, non-bureaucratic mechanism that could react to the general security needs of member states. It also provided crucial confidence building between Caribbean states.

Through regional forums, participants could consider and refine provisions of a draft text through recognizing incompatibilities with existing national legislation. Informal consultations and sub-regional meetings enabled states in the wider Caribbean to focus on, and participate in, the issue of maritime security cooperation. They were similar to regional consultations within Southeast Asia’s annual ‘Shangri-la’ Dialogue meetings.[113] In preparation for a formal diplomatic conference to negotiate a regional agreement, work commenced with three rounds of informal consultations. The first occurred on March 1998 in Curacao, the second on October 1999 in Aruba, and the third on November 2000. In the eastern, northern and the western Caribbean states, subsequent, sub-regional meetings were held. There followed a diplomatic conference held in two sessions. Convened by the foreign ministries of Costa Rica and the Netherlands, the first session took place in Costa Rica during 5-8 November 2001, where several provisions achieved consensus. The second session took place in Aruba from 22-25 April 2002, and convened by the foreign ministries of Costa Rica, the Netherlands and St. Lucia (on behalf of CARICOM). At this session, the states reached consensus on the final text of the Agreement.

Because the agreement-making process was inclusive of many participating states, final agreement was not without compromise. It was the product of intense discussions that sought to balance progression beyond the ad hoc regime (outlined in Article 17 of the 1988 UN Drugs Convention) to accommodate the accepted practice of many regional actors. Promoted as a ‘foundational international legal framework for inter-governmental cooperation’, the UN Drugs Convention built on the 1971 Convention on Psychotropic Substances. As a piece of international law, the UN Drugs Convention respected norms and principles of sovereign equality, territorial integrity of states, and non-intervention in the domestic affairs of other states. As a comprehensive legal means to combat drug trafficking, its prior acceptance internationally provided a legal framework upon which to base the more locally focussed CRMA.[114]

Drugs Convention

What made the UN Drugs Convention a suitable legal base for regional maritime law enforcement was its clear expression of the need for cooperation. Incorporated in Article 17, and headed ‘Illicit Traffic by Sea’, it calls for full co-operation between participating states to suppress narcotics smuggling. Article 17 outlines that there must be cooperation to suppress illicit traffic by sea but that this must conform to international law of the sea, as contained in UNCLOS. The second part of Article 17 refers to the right of authorities to request help from ‘other parties’ to detain and assist the authorities and prevent a suspect vessel from proceeding regardless of whether it is registered or not. The third part of this section permits an authority that suspects a vessel (registered or not) of engaging in illicit trafficking, to contact the state of registry of the suspect vessel to confirm such registry; upon receiving confirmation, the pursuing authority would seek permission to allow appropriate action to be taken against the suspect vessel. Part four (Article 17) details how authority might be granted to the pursuing vessel from the state where the vessel is registered. Allowing for any agreements already in place, this includes interdiction, boarding and searching the suspect vessel. If evidence of illicit drugs trafficking is found, then the pursuing authority may ‘take appropriate action’, such as arresting the vessel, its crew and any cargo. Part five (Article 17) reminds all authorities that the safety of all lives involved is paramount; respect should be given to the security of the vessel and its cargo and the interests of the state of registry or other states that become involved. Part six (Article 17) refers to the responsibility of the pursuing state to allow the suspect vessel’s state of registry to determine the terms of any permission granted to the pursuing authorities to take action. Part seven (Article 17) refers to the need for the suspect vessel’s state of registry to make timely replies to the request to confirm registry, and part eight (Article 17) refers to the need for the pursuing state to also keep the state of registry informed of any actions taken. To improve this request procedure, and expedite requests part nine (Article 17) suggests that all parties should consider entering a formal bilateral or regional agreement. Part ten (Article 17) outlines that authorities are able to interdict vessels and make requests; these include ‘warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorised to that effect.’ Part 11 (Article 17) reminds participating states to respect at all time the sovereignty of other participating states. It calls on all signatories to meet their obligations under the Convention ‘consistent with the principles of sovereign equality and territorial integrity’ of states; of refraining from intervention in other states’ domestic affairs, and not exercising jurisdiction within the territory of other states. Finally, section eleven is a reminder to a pursuing authority of the rights under international law of the sea (UNCLOS) of the jurisdiction of the maritime state’s territorial sea.[115]

However, participating states had to conform to existing law of the sea (UNCLOS) that upheld the rights and obligations and the exercise of jurisdiction of states within their own territories. As an international legal regime, the UN Drugs Convention promoted law enforcement cooperation between actors to counter a specific criminal activity. Although obligations applied to states who agreed to the UN Drugs Convention, clear guidelines as to the scope of the convention made clear that, the territorial sovereignty of individual states was always to be respected. Measures taken by participating states were only expected to comply legislatively and administratively within their own domestic laws.

Any obligation to abide by the convention did not exclude states from the ‘principles of sovereign equality and territorial integrity of States and … non-intervention in the domestic affairs of other States’.[116] Therefore, the UN Drugs Convention supported jurisdiction within a territory remaining the domain of the state possessing territorial sovereignty over it. However, Article seven of the UN Drugs Convention noted that participating states should mutually assist other participating states in investigations, intelligence sharing and prosecutions.[117]

Post 9/11 Funding

Renewed political willingness and the standing up of the United States Department of Homeland Security promised increased funding and resource allocation for authorities including the USCG. So coincidently, crime at sea received renewed attention and maritime law enforcement benefited. This also renewed the United States’ interest in projecting influence in the fight against terrorism into regions not visited since the end of the Cold War. Large-scale smuggling of narcotics through the Caribbean Sea saw illicit drugs transported by water and air, bound for the North America and Europe (via Africa’s West Coast). After 9/11 terrorist attack, concerns that weapons of mass destruction (WMDs) were being transported by sea to fuel terrorism, led to further tightening of security at sea, which also had some impact on a response to narcotics smuggling. A transformation occurred within international maritime law globally. New agreements sought to protect maritime practitioners globally by combating, piracy at sea, terrorism, proliferation of [WMDs], and narcotics trafficking. The new regimes, such as the PSI and ISPS Code promised better integration and cooperation between states regarding specific maritime security, and targeting ports and ships at sea.[118]·

Attempts at Multi-lateralism

From the UN Drugs Convention, a more inclusive multilateral agreement was created that proposed an umbrella mechanism for regional Caribbean law enforcement at sea cooperation. Initial negotiations in 2002 sought to progress from the bilateral agreements to a more inclusive multilateral agreement. Costa Rica, Netherlands and CARICOM, supported by regional governments, co-chaired the initial meetings. Originally titled, ‘Agreement Concerning Cooperation in Suppressing Illicit Maritime and Air Trafficking in Narcotic Drugs and Psychotropic Substances in the Caribbean Area’, the Caribbean Regional Maritime Agreement (CRMA) was drafted in November 2001-03.[119] Whereas UNCLOS was guidance for the peaceful use of the sea, making only limited reference to actions that states could take during periods of war, it has only a limited provision for enforcement of international law in specific areas of security at sea. However, UNCLOS does recommend that states cooperate with each other.[120] Therefore, the CRMA was building upon the legal framework already provided by the UN Drugs Convention and supported by maritime conventions contained within UNCLOS. This is similar to Southeast Asian states’ early efforts to stem piracy at sea. Cooperation was limited, with the basis for operational maritime security coordination relying on IMO Circulars, external prompting and support, and regional forums. However, the United States, State Department caveat in the introduction to the CRMA, cautioned that preventing use of the Caribbean Sea for smuggling narcotics would be a complex activity.[121] A briefing to the United Nations Division for Ocean Affairs and the Law of the Sea (DOALOS) by Michele Ameri and Michael Shewchuk outlined significant challenges that had to be faced when standing up regional maritime security agreements. These included the ratification of, or accession to, relevant international conventions, effective implementation of the conventions; internal coordination; effective law enforcement; bilateral, regional and multilateral cooperation; and finally, the minimising of cost to the maritime industry.[122] A Caribbean Regional Maritime Agreement (CRMA) would attempt to create a juridical structure for regional, sub-regional and bilateral cooperation. It would allow maritime law enforcement operations, form the basis for further operational and juridical agreements, and set out modern operational procedures for confirmation of the nationality of suspect vessels and aircraft. This would allow cooperative embarkation of law enforcement officials, and procedures for providing assistance by authorised vessels and aircraft in suppressing narcotics smuggling when boarding and searching suspect vessels. The CRMA would generally follow the pattern of the six-part bilateral agreements, and would address ship-boarding, ship-riding, pursuit, entry to investigate, over flight and the relaying of orders and instructions to aircraft.[123]

Several states had signed bilateral agreements although not the CRMA, yet this was progress towards accepting a multilateral model. It was the confidence created by the bilateral arrangements that supported the potential success of the CRMA. According to the United States State Department, by 2007, various Caribbean states had signed the CRMA, tentatively supporting the idea or waiting before formally participating. Guyana had signed, Haiti and Jamaica had also signed but not ratified it; Suriname (1997) and Trinidad and Tobago had signed comprehensive bilateral agreements, both of which were in force. In addition, St. Lucia and St. Vincent and the Grenadines had signed limited maritime agreements in 1995 with the United States.[124] The Bahamas cooperated with the United States and had a Comprehensive Maritime Agreement (CMA) in place that went into force in 2004.Cuba had not signed the CRMA although it participated in the initial negotiations and provided some information on suspects and vessels to other governments. The Dominican Republic had not ratified the CRMA but did sign a bilateral ‘Maritime Counter-Drug Operations’ agreement with the United States that allowed for limited cooperation.

As the main authority promoting the CRMA, the USCG had an interest in taking the groundwork cooperation that the bilateral agreements had created, a step further. The USCG later attempted to offer a similar model to states in Southeast Asia, albeit with less success than was the case in the Caribbean with the CRMA. For the USCG, the purpose of the Caribbean agreement was to further the cooperation seen in the bilateral agreements without excluding normative regional practices. It sought practical application of legal measures previously endorsed by CARICOM Attorneys General and Heads of Governments, the RSS, the EU and the United States Government. Opening for signature on 10 April 2003 in San Jose, Costa Rica, the intent of the CRMA was to provide an international model for maritime interdiction of drugs and other illicit traffic, recognising the limited capacity of states to fight narcotics smuggling alone. Despite different perceptions of states regarding threat, and limitations of their capacities, the CRMA was expected to consolidate regional and sub-regional security cooperation. Surveillance and other information would be available to participating states 24 hours per day, seven days per week, and operational requests, authorisations and coordination between authorities to suppress illicit traffic facilitated. All this whilst respecting the flag-state in vessel interdictions, and state jurisdictions during hot pursuit. Through cooperation, confidence building would continue in the Caribbean Sea, perhaps offering a lesson for other regional negotiations, such as Southeast Asia on similar maritime law enforcement issues. Some flexibility was built into the CRMA so those states party to the agreement could elect provisions or add caveats to suit individual requirements and followed national interests regarding hot-pursuit, entry to investigate, over-flight, and orders to aircraft and ship boarding. These options were added to reduce the potential for problems with signing, ratifying and implementing the agreement, or affect existing or future bilateral or sub-regional agreements.[125]

Whereas the six-part bilateral maritime law enforcement agreements became established Caribbean arrangements, indicating normalisation of security cooperation, acceptance of the CRMA was merely in-principle, and therefore uncertain. When the CRMA became operational, it was to provide a comprehensive multilateral agreement on law enforcement interdiction at sea. Its region-specific focus on the Caribbean differed to the wider, international focus of the ISPS Code and the UN Drugs Convention. By January 2009, several Caribbean states had signed the agreement, although it lacked the required minimum number of states (five) that would bring it into force.[126] Until the CRMA came into force with the requisite minimum ratifications, regional maritime law enforcement cooperation in the Caribbean Sea would consist of existing, multiple bilateral arrangements that have been in place since the mid-1990s. Although patchy and ad hoc at times, cooperation had been consistent since the bilateral agreement-making during the 1990s, but the slow up-take of the CRMA indicated that multilateral arrangements required more than forum discussions between states and external states, or the presence of a powerful state to initiate the process. A successful multilateral agreement would rely on the participation of states, ongoing confidence building, and a belief that all actors would be better off under the new arrangements than they were under existing bilateral ones.

4.6 Post 9/11: Terrorism and Security at Sea

Fear and Terror
Since the events on 11 September 2011 (9/11), an association between maritime criminal activities and terrorism changed the perimeters of maritime security. Conflict or threats of belligerency against states became a legitimized response to the United States ‘war on terror’, blurring the former distinction between crime for profit and acts of war between states.[127] In Southeast Asia, linking piracy at sea with terrorism and its association with Islam likely influenced a rejection of cooperation between regional states and the United States. Within the Caribbean, on the other hand, the ‘war on terror’ led to a merging of resources that benefited the ‘war on drugs’ through increased capacity, funding and resources, without noticeably undermining bilateral agreements with Caribbean states. In addition, unlike Southeast Asia, Islamic terrorists did not appear to have obvious cultural, economic or political links to states within the Caribbean that had agreements with the United States.

The war on terrorism prompted discussion about the role of military forces. Did this new threat require a law enforcement or military response? Maritime law enforcement had been seen as primarily a USCG duty, partly because of the ‘posse comitatus’ limitations on United States military forces conducting enforcing United States law; this was despite participation of United Kingdom, French and Dutch naval warships in counter-drugs operations. After 2001, counter-terrorism prompted ongoing discussions within the services of the United States about roles, security and law enforcement. Terrorists were the enemy but it was unclear if this required law enforcement or a military response. Commander Jeff Breslau of the United States Navy Central Command comments that a primary focus of (naval) maritime operations after 9/11 terrorist attack was to prevent terrorists from making use of the sea to move weapons or people or to launch attacks. Dan Tremper of the USCG argues that it was still the job of the USCG to provide maritime law enforcement.[128] USCG Commandant Admiral Thad Allen conceded that maritime law enforcement had changed over time. Since 1979, USCG’s boardings at sea were armed operations. In 1989, the Joint Inter-Agency Task Force-South (JIATF-S) was set up. Significantly, the United States Department of Defence had taken on an ancillary mission focus of responding to low-security maritime threats such as narcotics smuggling within the Caribbean Sea.[129]

Since narcotics smuggling had become a covert maritime criminal activity, its black market profits linked to terrorism, necessitating that existing security mechanisms, including maritime security, be complimentary to the new imperative of defeating terrorist activity against the United States. Consequently, a December 2004 United States national security presidential directive initiated a ‘roadmap’ to better maritime awareness. The aims of the roadmap were to collate information on all maritime traffic (shipping) bound for United States ports. Some media commentators saw a connection between the covert nature of narcotics smuggling and potential terrorist activities. Maritime terrorists would not deliver a weapon in a container, they argued, it would be transported by small boat or submersible like those used by drugs smugglers.[130] Possibly influenced by similar ideas, the roadmap called for ‘electronic tripwires’ to be placed on the sea-bed in a wide area to detect drug smuggling vessels and to identify these, as was done during the Cold War to detect submarines. The roadmap also sought to utilise information-gathering methods, especially human intelligence as well as open source research.[131] The ideas about cooperation had changed from cooperation to something akin to covert military operations.

Wider Anti-Terror Measures Although the Proliferation Security Initiative (PSI) and Statement of Interdiction Principles (SIP) are applied globally rather than specifically targeting the Caribbean or Southeast Asia, they are included here in order to illustrate how the United States created a legal framework to enhance cooperation between states on a specific maritime security issue. Following the 9/11 terrorist attacks in 2001, the United States sought a legal, in principle statement for further security cooperation, leading efforts to counter the spread of weapons. PSI and SIP aligned with the stated basic function of the IMO to provide a mechanism for cooperation among Governments, through government regulation and practice in technical matters affecting shipping engaged in international trade.[132] This met an International Maritime Organisation (IMO) responsibility to provide guidance on security at sea through its conventions, codes and treaties, and to promote cooperation between states. Nevertheless, the main benefactor of the post-9/11 maritime law enforcement provisions has been the United States.[133]

One outcome of PSI and SIP that increased the security at ports in both the Caribbean and Southeast Asia, and had did not require incursions across territorial boundaries, or require states to manage cooperative mechanisms with other states was the International Ship and Port Facility Security Code (ISPS Code). Heightened security after the 9/11 terrorist attacks saw millions of shipping containers, bulk carriers and ports handling cargo bound to the United States mainland subject to a higher level of scrutiny. A 1997 United States Department of Transportation Maritime Security Report contained a maritime interdiction strategy involving surveillance and apprehension, including detecting and intercepting suspected smugglers, searching cargoes, seizing contraband, arresting suspects and confiscating their equipment.[134] The International Convention for the Safety of Life at Sea (SOLAS) essentially facilitated the ISPS Code. SOLAS provided an existing framework based on safety at sea but providing a means to attach a section for preventing transport of weapons by sea. This meant that all 148 states that signed onto SOLAS would be signatories to, and therefore comply with the ISPS Code. The IMO states that the ISPS Code was put into practice through ‘SOLAS, chapter XI-2 Special Measures to Enhance Maritime Security’.[135] The Code was adopted in December 2002; it entered into force on 1 July 2004 with the purpose of providing ‘a standardised, consistent framework for evaluating risk, enabling governments to offset changes in threat with changes in vulnerability for ships and port facilities through determination of appropriate security levels and corresponding security measures’.[136]

Although the ISPS Code is an international means to prevent nuclear, biological and chemical weapons (WMDs) from being shipped to United States ports, thus protecting American national interests, it also had incidental benefits for other maritime security areas. The ISPS Code allowed supplementary inspections of containers around the world, resulting in increasing detection of narcotics and other illegally smuggled goods. The Code improved enforcement of law in international waters, and in territorial seas in areas that the UNCLOS did not provide. Although the ISPS Code offered internationally accepted agreement on how and when interdiction in port is conducted, deciding which states could carry out interdiction, and which state’s vessels could be targets of interdiction operations was a contentious aspect.[137] Whereas the IMO does not issue ‘black lists’ of states or ports that do not comply with the ISPS Code, an additional code of practice was enshrined within the United States Customs Container Security Initiative (CSI) 2006. CSI also sought to serve the maritime security interests of the United States interests following 9/11 terrorist attacks by targeting shipping containers bound for United States ports. By identifying, pre-screening and X-raying containers to detect threatening, imported material or weapons. The ambiguity in PSI, SIPS, the ISPS Code and CSI has allowed the United States some flexibility as to which state or international actor is targeted. Moreover, it allows states with veto powers in the United Nations Security Council, who may legitimately ship nuclear weapons and materials, to avoid being targeted as long as they do not export WMDs to rogue states or non-state actors.[138] Although the ISPS Code is ambiguous on the issue of how a threat will be determined, and by whom, CSI is more specific. Accordingly, and unlike the IMO, the USCG publishes lists of ports around the world that are not deemed to have given sufficient regard to anti-terrorism measures laid down by the these codes of practice.

Not specifically created to oppose narcotics smugglers, other measures aiming to improve maritime port and shipping security benefited Caribbean law enforcement at sea. Although the International Ship and Port Facility Security Code (ISPS Code) was intended as an anti-weapons trafficking measure, it also benefited other maritime law enforcement operations. The introduction of the ISPS Code in July 2004, and Container Security Initiative (CSI) in 2006, placed emphasis on port inspections, and assessment of vessels carrying containers bound for the United States. Searching for weapons materials, authorities of participating states began to scan and physically examination suspect containers, increasing the likelihood of discovering illicit drug smuggling.[139] For instance, in November 2006, Drug Enforcement Unit (DEU) officers in Freeport, Grand Bahama Island, Bahamas, along with Customs and Container Port Security personnel searched a container destined for Nigeria, a known transhipment state for narcotics bound for Europe.[140] Inside the container, authorities found 26 boxes filled with 285 grey, black and clear packages of cocaine, totalling around 285 kilograms. Consequently, a widening of maritime security measures benefited law enforcement at sea within the Caribbean (and elsewhere). By including Caribbean ports and adopting security upgrades to meet ISPS Code requirements, some notable interdictions occurred after 2004. Although the ISPS Code complimented law enforcement through its requirement for improved security generally, it focussed on port security rather than security at sea. Increasing rates of successful interdiction by the USCG suggested that changes in the amount of either narcotics being smuggled, or the tactics used by the USCG to interdict drug smugglers, and possibly the effects of the ISPS Code, were paying dividends in the form of successful interdictions. The USCG noted a steady increase of narcotics seizures from 1994 through to 2007, peaking in 2005; one year after adoption of the ISPS Code.[141] However, there were also indications of declining success after 2005.

Implications

While the above codes of practice have sought specifically to protect the interests of the United States, international conventions comprising law of the sea (UNCLOS) provides other legal rights protecting maritime users and the interests of states, especially territorial sovereignty, that have implications for the enforcement of law at sea in the Caribbean, Southeast Asia and elsewhere. Three nautical miles out to sea from the littoral had been a traditional, jurisdictional maritime frontier since 1703 when Dutch jurist Cornelius van Bynkershoek determined that the limit of a state’s territory to seaward was the distance a shot-ball would travel if fired from a cannon on shore. Following ratification of UNCLOS III on 16th of November 1994, states were able to claim an enlarged territorial sea of up to 12 nautical miles, measured from the low-tide mark of the coastline. Since 1996, 137 states have declared a 12 nautical mile limit, some claiming an additional 24 nautical mile contiguous zone where municipal laws might be applicable. The Caribbean Sea and Southeast Asia are therefore in the same way archipelago regions, constrained by the geographical, political and jurisdictional boundaries, and legally defined by the conventions of international law.

Questions of ownership of territory, the land, and the seas that surrounded it, have been contentious and on-going issues that present another layer of suspicion that confidence building has sought to overcome.[142] Archipelagos, including those comprising Caribbean and Southeast Asian regions are aberrations from Grotian reasoning that possession of portions of the sea and/or shore is subject to use and occupation.[143] A twentieth century incorporation of Grotius claim, UNCLOS confirms that the sea cannot not be owned beyond the immediate possession of those who use its shores, nor can any state ‘contain’ a part of the high seas, aside from economic claims to the seabed in the Exclusive Economic Zones (EEZ).[144] However, the concept of res communisomnium, borrowed from old Roman law, still guides contemporary international maritime law.[145] At the International Tribunal for the Law of the Sea in Hamburg, Judge BudislavVukas stated that the concept of res communisomnium provides a basis for peaceful uses for the oceans, rather than naval warfare.[146]

What comprises peaceful use of the ocean is made clear in UNCLOS, an important point that has avoided misunderstandings regarding the day-to-day activity of marine authorities. UNCLOS refers to legal extent of territorial jurisdiction (the right of authority over a specific territory), making provision for resolving legal disputation and promoting global and regional awareness of maritime boundaries. For instance, Article 19 of UNCLOS clearly prohibits actions by external states that present a threat to states, or that involve transport of illegal cargoes, including narcotics, giving vessels the right to conduct innocent, non-aggressive passage through any territorial sea, and this supports the intent of the ISPS Code, PSI and SIPS. Passage of a vessel is considered ‘innocent’ if it does not affect the ‘peace, good order or security’ of the coastal state. On the other hand, such passage is not considered innocent if the vessel seeks to threaten the territorial sovereignty or political independence of states, make use of weapons of any kind, or violate any other principles of international law embodied in the United Nations Charter.[147]

New Tactics, New Laws

New tactics by narcotics smugglers have meant that the United States, as the driver behind Caribbean maritime law enforcement agreements, has had to adapt policy when required, without undermining the basic legal protection to individual states. Other factors placed narcotics smuggling back in the spotlight of Caribbean law enforcement at sea cooperation after 2006. Captain WadeWilkenson (United States Navy) stated that the use of semi-submersibles, sending increasing numbers of smaller loads to spread the risk to any one shipment both contributed to declining success of law enforcement at sea. Compared to the 2001-2006 period, the increasing use of semi-submersibles by drug smugglers led to a thirty-seven percent decrease in the number of successful interdictions in the 2007-2008 period.

In a similar way that pirates in Southeast Asia used the different jurisdictions of states to make pursuit by authorities more difficult, Caribbean drug smugglers were increasingly using the protection of the littoral by transiting through multiple territorial seas and jurisdictions, rather than risking a transit of international waters, risking interdiction by any law enforcement or naval authority.[148] Maritime criminals adapted their activities in the Caribbean and so as the principle driver of cooperative security at sea in the region, the United States responded through legal means. For instance, legislation in 2008 proscribed the use of submersible vessels by drugs smugglers.[149] Part of the Homeland Security Subcommittee on Transportation Security and Infrastructure Protection, United States Congressman Dan Lungren, recognised the USCG requests for legal tools to counter smuggler’s tactics. The covert nature of semi-submersibles and their increasing sophistication made the issue a serious problem, threatening the national security of the United States because it posed the possibility of terrorists adopting similar methods; it therefore had to be stopped.[150] Consequently, the Drug Trafficking Interdiction Act was put into force to prohibit operation of any submersible or semi-submersible vessel without a nationality, navigating ‘through or from waters beyond the outer limit of the territorial sea of a single country’ and activity that attracts a maximum penalty of 15 years imprisonment. This was an effective legal measure. In September 2008, USCG interdicted an unregistered (therefore, stateless) vessel found to contain over six metric tonnes of cocaine with an estimated street value of US$196 million.[151] In the same month, the USCG seized seven tonnes of cocaine with an estimated street value of $8.4 million during a successful interdiction vindicating USCG reliance on pursuing a legal course of action.[152] Significantly, the Drug Trafficking Vessel Interdiction Act of 2008 signalled that the United States supported maritime law enforcement through legal means, assigning a specific criminal activity a status external to the protection of a sovereign state. Whereas this Act sought to position this activity as a threat to United States national security, as a form of covert transport that could be used to carry weapons to be used against United States interests, it also reaffirmed that the United States was willing to maintain security beyond its borders through rule of law. The Act situated drugs smugglers in a similar legal category as pirates, deeming them enemies of humankind: a clear reference to this behaviour running counter to established, international norms.[153]

Conclusion

Whereas non-traditional maritime security cooperation in Southeast Asia would later indicate resistance to a United States’ proposed security initiative of regional cooperation at sea, this was not the case within the Caribbean. In the Caribbean, consensus amongst many states that bilateral security cooperation at sea with the United States was in their best interests did not broaden into a desire for a multilateral security-at-sea mechanism. This contrasts with later events in Southeast Asia, where there was consensus to exclude the United States when maritime security was associated with the political crime of terrorism, but law enforcement cooperation at sea between select states did occur to regarding the less politically loaded threat of piracy at sea. Despite successes, the United States was not entirely successful in other theatres of operations. Southeast Asia’s exclusion of the United States participation forms the subject of the next chapter.

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Eight Bells

Here you will find articles, videos, and my blogs relating to my research and areas of interest are in maritime security, politics of Indonesia, and the Asia-Pacific, law and order at sea in the Caribbean & Southeast Asia, terrorism (insurgencies) Submarine warfare, and the history of war at sea...all washed down with G & Ts as the sun crosses the yard-arm............